AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
XXXXXX OFFICE BUILDINGS I, LLC
AND
HARVARD PROPERTY TRUST, LLC
D/B/A BEHRINGER HARVARD FUNDS
TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE AND SALE OF PROPERTY.....................................................1
Section 1.1 Sale..............................................................................1
Section 1.2 Purchase Price and Deposit........................................................2
Section 1.3 Title to the Property.............................................................3
ARTICLE II CONDITIONS........................................................................3
Section 2.1 Conditions Period.................................................................3
Section 2.2 Independent Consideration.........................................................4
ARTICLE III TITLE.............................................................................4
Section 3.1 Preliminary Title Report..........................................................4
Section 3.2 Owner's Title Insurance Policy for the Property...................................4
Section 3.3 Seller's Disclosure................................................................
ARTICLE IV REPRESENTATIONS AND WARRANTIES, COVENANTS, AND INDEMNIFICATIONS...................4
Section 4.1 Representations and Warranties of Seller..........................................5
Section 4.2 Survival of Seller's Representations and Warranties...............................7
Section 4.3 Representations and Warranties of Buyer...........................................7
Section 4.4 Survival of Buyer's Representations and Warranties................................8
Section 4.5 Buyer's Covenants and Seller's Condition..........................................8
Section 4.6 Seller's Covenants and Buyer's Condition..........................................8
ARTICLE V DAMAGE............................................................................9
Section 5.1 Minor Loss........................................................................9
Section 5.2 Major Loss........................................................................9
ARTICLE VI BROKERS AND EXPENSES.............................................................10
Section 6.1 Brokers..........................................................................10
Section 6.2 Expenses.........................................................................10
ARTICLE VII LEASES AND OTHER AGREEMENTS......................................................10
Section 7.1 Leasing Costs....................................................................10
Section 7.2 Tenant Notice Letter.............................................................11
Section 7.3 Buyer's Consent Required.........................................................11
ARTICLE VIII CLOSING AND ESCROW...............................................................11
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Section 8.1 Escrow Instructions..............................................................11
Section 8.2 Closing..........................................................................11
Section 8.3 Deposit of Documents.............................................................11
Section 8.4 Prorations.......................................................................12
ARTICLE IX PROVISIONS WITH RESPECT TO DEFAULT...............................................13
Section 9.1 Default by Seller................................................................13
Section 9.2 Default by Buyer.................................................................14
ARTICLE X MISCELLANEOUS....................................................................14
Section 10.1 Notices..........................................................................14
Section 10.2 Entire Agreement.................................................................15
Section 10.3 Time.............................................................................15
Section 10.4 Attorneys' Fees..................................................................15
Section 10.5 No Merger........................................................................15
Section 10.6 Assignment.......................................................................16
Section 10.7 Counterparts.....................................................................16
Section 10.8 Governing Law....................................................................16
Section 10.9 Interpretation of Agreement......................................................16
Section 10.10 Amendments.......................................................................16
Section 10.11 Drafts Not an Offer to Enter into a Legally Binding Contract.....................16
Section 10.12 No Partnership...................................................................16
Section 10.13 No Third Party Beneficiary.......................................................16
Section 10.14 Exhibits.........................................................................16
Section 10.15 Confidentiality..................................................................17
Section 10.16 Severability.....................................................................17
Section 10.17 DTPA Waiver; Waiver of Consumer Rights...........................................17
Section 10.18 Abstract of Land.................................................................17
Section 10.19 Audit Rights.....................................................................18
Section 10.20 Tenant Estoppel Certificate......................................................18
EXHIBITS:
---------
Exhibit "A" The Land
Exhibit "B" Special Warranty Deed
Exhibit "C" Xxxx of Sale
Exhibit "D" Assignment of Leases, Service Contracts and Warranties
Exhibit "E" The Designation Agreement
Exhibit "F" Tenant Notice Letter
Exhibit "G" As-Is Certificate
Exhibit "H" Tenant Estoppel Certificate
ii
AGREEMENT OF PURCHASE AND SALE
This Agreement of Purchase and Sale (the "Agreement") dated March __,
2005 (the "Effective Date"), is made and entered into by and between XXXXXX
OFFICE BUILDINGS I, LLC, a Delaware limited liability company ("Seller"), and
HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company d/b/a
Behringer Harvard Funds (the "Buyer").
RECITAL
Seller is the owner of the Property (as defined below). Seller desires
to sell the Property to Buyer, and Buyer desires to purchase the Property from
Seller, all on the terms and conditions set forth in this Agreement. The
Property is solely occupied by CitiCorp North America, Inc. ("Tenant") pursuant
to the terms of that certain Lease Agreement dated September 12, 2003, by and
between Associates Information Services, Inc., as landlord, and Tenant, as
tenant (the "CitiCorp Lease").
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF PROPERTY
Section 1.1 SALE. Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, subject to the terms, covenants and conditions set
forth herein, the following:
(a) all of Seller's right, title and interest in and to that
certain tract or parcel of land situated in the County of Dallas, State
of Texas, as more particularly described in EXHIBIT "A" attached hereto
and made a part hereof for all purposes, and which is located at 250 &
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx (the "Land");
(b) subject to the limitations set forth elsewhere in this
Agreement, all right, title and interest of Seller in and to all
privileges, servitudes and easements appurtenant to Seller's interest in
the Land, including, without limitation, all of Seller's right, title
and interest, if any, in and to (i) any and all development rights, air
rights, sewer rights and permits, water, water rights, riparian rights
and water stock relating to the Land, if any, and (ii) any easements,
servitudes, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use and enjoyment
of the Land and all of Seller's right, title and interest, if any, in
and to all roads and alleys adjoining or servicing the Land
(collectively, the "Appurtenances");
(c) subject to the limitations set forth elsewhere in this
Agreement, all of Seller's right, title and interest, if any, in and to
all improvements and fixtures located on the Land, if any, as well as
all buildings and structures presently located on the Land, if any,
including, without limitation, all apparatus, equipment and appliances
used in connection with the operation or occupancy of the Land or any of
the foregoing improvements, such as heating and air conditioning systems
and facilities used to provide any utility, refrigeration, ventilation,
garbage disposal or other services, but specifically excluding certain
fixtures, apparatus, equipment and appliances owned by Tenant under the
CitiCorp Lease (collectively, the "Improvements").
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(d) all furniture, equipment, machinery and other tangible
personal property (collectively, the "Personal Property") owned by
Seller, if any, located on and used in connection with the Land or the
Improvements as of the Closing Date, as defined in Section 8.2 below,
including without limitation, all apparatus, equipment and appliances,
but specifically excluding any personal property of Tenant under the
CitiCorp Lease; and
(e) any intangible personal property, to the extent
assignable, now or hereafter owned by Seller and used in the ownership,
use or operation of the Land, Improvements, or Personal Property, if
any, including, without limitation; (i) the right, if any, to use any
trade name now used in connection with the Property, as defined below,
if any; (ii) any and all lease rights, including, without limitation,
the Seller's interest in and to all leases of spaces in the Property,
including, without limitation, the CitiCorp Lease (collectively, the
"Leases"), the Seller's interest in all security deposits, prepaid rent,
charges and other sums, if any, under the Leases, and any and all
guaranties of the Leases; (iii) any and all utility contracts or other
service, maintenance and utility agreements or rights relating to the
ownership, use or operation of the Property, if any (the "Contracts");
(iv) licenses, permits, approvals, certificates of occupancy,
development rights, zoning rights and other approvals necessary for the
current ownership, use and operation of the Land and the other Property,
if any; and (v) all warranties relating to the Property, if any
(collectively, the "Intangible Property").
All of the items referred to in subparagraphs (a) through (e) above are
collectively referred to herein as the "Property."
Section 1.2 PURCHASE PRICE AND DEPOSIT.
(a) The purchase price of the Property is TWENTY-NINE
MILLION TWO HUNDRED FIFTY THOUSAND and NO/100 U.S. Dollars
($29,250,000.00) (the "Purchase Price") and shall be paid by Buyer to
Seller through the Title Company (as hereinafter defined) by wire
transfer in immediately available funds at the consummation of the
purchase and sale contemplated hereunder (the "Closing").
(b) Within two (2) business days following the execution of
this Agreement by Buyer and Seller, Buyer will deposit in escrow with
Republic Title of Texas, Inc. as agent for First American Title
Insurance Company, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxxxx (Telephone No. (000) 000-0000) (the "Title
Company"), a cash deposit in the amount of ONE MILLION TWO HUNDRED FIFTY
THOUSAND and NO/100 U.S. Dollars ($1,250,000.00) (such deposit, any
additions thereto and any interest thereon, shall be referred to herein
as the "Deposit"). If Buyer fails to make the Deposit as required
hereunder, then Seller may, at Seller's option, terminate this Agreement
upon written notice to Buyer (without opportunity for Buyer to cure).
The Deposit shall be held in an interest bearing account and all
interest accruing thereon shall be deemed a part of the Deposit. Except
as otherwise provided in this Agreement, the Deposit shall become
non-refundable. If the sale of the Property as contemplated hereunder is
consummated, then the Deposit shall be paid to Seller as a credit to the
cash portion of the Purchase Price. Within two (2) business days
following the expiration of the Conditions Period (as herein defined),
should Buyer elect to proceed with the purchase of the Property, then
Buyer shall deposit with the Title Company an
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additional sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) to be
held as part of the Deposit in accordance with the terms of this
Agreement.
_____________________ ______________________
Seller's initials Buyer's initials
Section 1.3 TITLE TO THE PROPERTY.
(a) At the Closing, Seller shall convey, transfer and assign
to Buyer title to the Land, subject to the Permitted Exceptions, as
defined below, by a duly executed and acknowledged Special Warranty Deed
in the form attached hereto as EXHIBIT "B" and made a part hereof for
all purposes (the "Deed").
(b) At the Closing, Seller shall transfer its right, title
and interest to property other than the Land and Improvements, including
the Personal Property, if any, subject only to the Permitted Exceptions,
by a Xxxx of Sale (the "Xxxx of Sale") and an Assignment of Leases,
Service Contracts and Warranties (the "Assignment") in the forms
attached hereto as EXHIBITS "C" and "D", respectively.
ARTICLE II
CONDITIONS
Section 2.1 CONDITIONS PERIOD. Buyer shall have until 5:00 p.m.
(Dallas, Texas time) on the date that is fifteen (15) days following the
Effective Date (the "Conditions Period") to enter upon the Land for such
inspections and tests of the Property as Buyer deems appropriate; provided,
however, that Buyer acknowledges that its ability to inspect certain areas of
the Land are limited by the terms of the CitiCorp Lease. Buyer must notify
Seller at least twenty-four (24) hours before said inspections and Seller shall
have the right to accompany or have a representative of Seller accompany Buyer
on each such entry upon the Property. Buyer hereby agrees to (a) restore the
Property to its previous condition promptly following the completion of each
such inspection, and (b) indemnify and hold Seller harmless from and against all
loss, cost or damage actually incurred by Seller arising out of actions taken at
or in regard to the Property by Buyer or its agents, engineers or consultants.
The foregoing indemnity shall survive the Closing and, if the purchase and sale
contemplated hereunder is not consummated, any termination of this Agreement.
Any such inspections conducted by Buyer or Buyer's agents hereunder shall not
interfere with the tenants of the Property. If Seller determines, in Seller's
sole discretion, that such inspections and/or tests are interfering with the
tenants of the Property, Seller may terminate any right of Buyer to conduct such
inspections or tests by providing written notice to Buyer. Notwithstanding
anything to the contrary contained in this Agreement, Seller acknowledges that
Buyer shall have the right, in its sole and absolute discretion, to terminate
this Agreement by delivering to Seller written notice of termination on or
before the expiration of the Conditions Period; PROVIDED, HOWEVER, THAT ANY SUCH
TERMINATION SHALL NOT ENTITLE BUYER TO A RETURN OF THE DEPOSIT. Accordingly, in
the event Buyer shall deliver to Seller on or before the expiration of the
Conditions Period written notice of Buyer's election to terminate this Agreement
pursuant to this Section 2.1, the Deposit will be immediately delivered to
Seller and neither party shall have any further rights or obligations hereunder,
except for the indemnification obligations contained in this Section 2.1 and
Section 6.1 below and the rights contained in Section 9.2 which shall survive
the Closing and, if the
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purchase and sale contemplated hereunder is not consummated, any termination of
this Agreement.
Section 2.2 INDEPENDENT CONSIDERATION. As independent consideration
for the option to terminate this Agreement pursuant to Section 2.1 and 3.1
hereof, Buyers shall pay to Seller $100.00 concurrently with the execution and
delivery of this Agreement.
ARTICLE III
TITLE
Section 3.1 PRELIMINARY TITLE REPORT. Within five (5) days following
the Effective Date, Seller will cause to be issued and delivered to Buyer (i) a
preliminary title report (the " Title Report"), issued by the Title Company,
together with copies of the documents referenced therein which create exceptions
to title to the Property and (ii) a survey ("Survey") of the Property. Buyer
shall have a period (the "Title Period"), expiring five (5) days following the
date on which the later of the Survey or Title Report is delivered to it, in
which to advise Seller in writing of those exceptions to title to the Property
as shown on the Title Report and/or any matter reflected in the Survey to which
Buyer objects. Any exception to title shown in the Title Report and/or any
matter reflected in the Survey to which Buyer does not specifically object (by
delivering written notice to Seller within such Title Period specifying the
objected exception) shall be deemed to have been approved by Buyer. Seller shall
have no obligation to cure or attempt to cure any of Buyer's objections to the
Title Report or the Survey. In the event Seller is unable or unwilling to so
cure any of Buyer's title or Survey objections, if any, Seller shall so notify
Buyer in writing within three (3) days following the timely delivery to Seller
of Buyer's list of objections to the title to the Property. Thereafter, Buyer
may, at its option, exercised by delivering written notice to Seller within
three (3) days following the date Seller delivers written notice to Buyer that
Seller is unable or unwilling to cure such title objections, (i) accept title to
the Property subject to the uncured objections in the Title Report and Survey
raised by Buyer as permitted hereby, without an adjustment in the Purchase
Price, in which event said uncured objections shall be deemed to be waived for
all purposes and such uncured items shall be deemed approved by Buyer or (ii)
terminate this Agreement, in which event the Deposit shall be returned to Buyer
by the Title Company and this Agreement shall be of no further force or effect,
except for the indemnification obligations contained in Sections 2.1 and 6.1 and
the rights contained in Section 9.2 which shall survive the Closing and, if the
purchase and sale contemplated hereunder is not consummated, any termination of
this Agreement. If Buyer fails to give such written notice to Seller within such
3-day period, Buyer shall be deemed to have elected option (i) above. All
matters disclosed in the Title Report and in the Survey which Buyer either
approves or is deemed to have approved are herein referred to as the "Permitted
Exceptions."
Section 3.2 OWNER'S TITLE INSURANCE POLICY FOR THE PROPERTY. At or
promptly after the Closing, Seller will cause the Title Company to deliver to
Buyer an Owner Policy of Title Insurance (the "Title Policy"), at Seller's sole
cost and expense, in the full amount of the Purchase Price, insuring Buyer's
title to the Property, subject only to the Permitted Exceptions. Buyer shall pay
for any endorsements to the Title Policy which Buyer shall require, including,
without limitation, the cost associated with the deletion of the "survey
exception."
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES,
COVENANTS, AND INDEMNIFICATIONS
Section 4.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
makes the following representations and warranties, which representations and
warranties shall be true and correct as of the date of execution of this
Agreement and as of the Closing Date:
(a) Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by Seller's creditors,
(iii) suffered the appointment of a receiver to take possession of all,
or substantially all, of Seller's assets, (iv) suffered the attachment
or other judicial seizure of all, or substantially all, of Seller's
assets, (v) admitted in writing its inability to pay its debts as they
come due or (vi) made an offer of settlement, extension or composition
to its creditors generally.
(b) This Agreement (i) has been duly executed and delivered
by Seller, (ii) is the legal, valid and binding obligation of Seller,
and (iii) does not violate any provision of any agreement or judicial
order to which Seller is a party or to which Seller is subject. All
documents to be executed by Seller which are to be delivered to Buyer at
Closing (x) at the time of Closing will be duly executed and delivered
by Seller, (y) at the time of Closing will be legal, valid and binding
obligations of Seller, and (z) at the time of Closing will not violate
any provision of any agreement or judicial order to which Seller is a
party or to which Seller is subject.
(c) Seller is not a "foreign person" as defined in Section
1445 of the Internal Revenue Code of 1986, as amended (the "Code") and
any related regulations.
SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS
AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
(OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX
CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS, THE
TRUTH, ACCURACY OR COMPLETENESS OF THE ITEMS OR ANY OTHER INFORMATION PROVIDED
BY OR ON BEHALF OF SELLER TO BUYER OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL
ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS." EXCEPT FOR THOSE
REPRESENTATIONS SET FROTH IN CLAUSES 4.1 (A) THROUGH (C) ABOVE, BUYER HAS NOT
RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER WITH RESPECT TO THE PROPERTY OR OTHERWISE.
BUYER HAS CONDUCTED OR WILL CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY,
INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,
AS BUYER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER. UPON
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CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS. BUYER, UPON
CLOSING, HEREBY WAIVES, RELINQUISHES AND RELEASES SELLER FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT
(I.E., NEGLIGENCE AND STRICT LIABILITY), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST
SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY CONSTRUCTION DEFECTS,
PHYSICAL AND ENVIRONMENTAL CONDITIONS, THE VIOLATION OF ANY APPLICABLE LAWS AND
ANY AND ALL OTHER MATTERS REGARDING THE PROPERTY. BUYER, UPON CLOSING, SHALL
AUTOMATICALLY INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT (I.E.,
NEGLIGENCE AND STRICT LIABILITY)), LOSS, DAMAGE, LIABILITIES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, FIXED OR CONTINGENT, ASSERTED AGAINST OR INCURRED BY SELLER AT
ANY TIME BY REASON OF OR ARISING OUT OF THE VIOLATION OF ANY APPLICABLE LAWS
PERTAINING TO ANY ADVERSE PHYSICAL OR ENVIRONMENTAL CONDITION PLACED OR
OCCURRING ON THE PROPERTY ON OR AFTER THE CLOSING DATE. SHOULD ANY CLEAN-UP,
REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS
ON THE PROPERTY BE REQUIRED, IT IS HEREBY UNDERSTOOD AND AGREED THAT SUCH
CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF BUYER AND BUYER
SHALL CAUSE SUCH CLEAN-UP, REMOVAL OR REMEDIATION TO BE PERFORMED AT THE SOLE
COST AND EXPENSE OF BUYER OR PERSONS AND/OR ENTITIES OTHER THAN SELLER. THE
TERMS, CONDITIONS, OBLIGATIONS AND INDEMNITIES OF THIS SECTION 4.1 SHALL
EXPRESSLY SURVIVE THE CLOSING AND NOT MERGE THEREIN.
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHER,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH RESPECT TO THIS AGREEMENT.
AS USED HEREIN, THE TERM "HAZARDOUS SUBSTANCES" SHALL MEAN ANY SUBSTANCE
WHICH IS OR CONTAINS (I) ANY "HAZARDOUS SUBSTANCE" AS NOW OR HEREAFTER DEFINED
IN ss.101(14) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT OF 1980, AS AMENDED (42 U.S.C. ss.9601 ET SEQ.) ("CERCLA") OR ANY
REGULATIONS PROMULGATED UNDER CERCLA; (II) ANY "HAZARDOUS WASTE" AS NOW OR
HEREAFTER DEFINED IN THE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C.
ss.6901 ET SEQ.) ("RCRA") OR REGULATIONS PROMULGATED UNDER RCRA; (III) ANY
SUBSTANCE REGULATED BY TOXIC SUBSTANCES CONTROL ACT
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(15 U.S.C. ss.2601 ET SEQ.); (IV) GASOLINE, DIESEL FUEL, OR OTHER PETROLEUM
HYDROCARBONS; (V) ASBESTOS AND ASBESTOS CONTAINING MATERIALS, IN ANY FORM,
WHETHER FRIABLE OR NON-FRIABLE; (VI) POLYCHLORINATED BIPHENYLS; (VII) RADON GAS;
AND (VIII) ANY ADDITIONAL SUBSTANCES OR MATERIALS WHICH ARE NOW OR HEREAFTER
CLASSIFIED OR CONSIDERED TO BE HAZARDOUS OR TOXIC UNDER ANY APPLICABLE FEDERAL
OR STATE LAWS RELATING TO ANY OF THE PROPERTY. HAZARDOUS SUBSTANCES SHALL
INCLUDE, WITHOUT LIMITATION, ANY SUBSTANCE, THE PRESENCE OF WHICH ON THE
PROPERTY, (A) REQUIRES REPORTING, INVESTIGATION OR REMEDIATION UNDER APPLICABLE
LAW, (B) CAUSES OR THREATENS TO CAUSE A NUISANCE ON THE PROPERTY OR ADJACENT
PROPERTY OR POSES OR THREATENS TO POSE A HAZARD TO THE HEALTH OR SAFETY OF
PERSONS ON THE PROPERTY OR ADJACENT PROPERTY; OR (C) WHICH, IF IT EMANATED OR
MIGRATED FROM THE PROPERTY, COULD CONSTITUTE A TRESPASS.
NOTHING CONTAINED IN THIS SECTION 4.1 SHALL CHANGE OR LIMIT ANY OF
SELLER'S EXPRESS REPRESENTATIONS OR WARRANTIES SET FORTH HEREIN OR ANY OF
BUYER'S RIGHTS OR REMEDIES ARISING AS A RESULT OF ANY BREACH OF ANY SUCH EXPRESS
REPRESENTATION OR WARRANTY OF SELLER.
_____________________ ______________________
Seller's initials Buyer's initials
Section 4.2 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller contained in Section 4.1 hereof shall
survive the Closing for a period of six (6) months after the Closing; provided,
that if Buyer notifies Seller during such six-month period that any
representation or warranty of Seller has been breached during such six-month
period, then Buyer shall have until the later of (i) a period of three (3)
months following the date of notification of Seller by Buyer and (ii) the
expiration of such six-month period in which to initiate a lawsuit against
Seller with respect to such a breach. Any claim which Buyer may have at any time
against Seller for breach of any such representation or warranty, whether known
or unknown, which is not asserted by written notice to Seller within such
six-month period shall not be valid or effective, and Seller shall have no
liability with respect thereto.
Section 4.3 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
makes the following representations and warranties, which representations and
warranties shall be true and correct as of the date of execution of this
Agreement and as of the Closing:
(a) Buyer has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by Buyer's creditors,
(iii) suffered the appointment of a receiver to take possession of all,
or substantially all, of Buyer's assets, (iv) suffered the attachment or
other judicial seizure of all, or substantially all, of Buyer's assets,
(v) admitted in writing its inability to pay its debts as they come due
or (vi) made an offer of settlement, extension or composition to its
creditors generally.
(b) This Agreement (i) has been duly executed and delivered
by Buyer, (ii) is the legal, valid and binding obligation of Buyer, and
(iii) does not violate any provision of any agreement or judicial order
to which Buyer is a party or to which Buyer is subject.
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All documents to be executed by Buyer which are to be delivered to
Seller at Closing (x) at the time of Closing will be duly executed and
delivered by Buyer, (y) at the time of Closing will be legal, valid and
binding obligations of Buyer, and (z) at the time of Closing will not
violate any provision of any agreement or judicial order or applicable
securities statutes to which Buyer is a party or to which Buyer is
subject.
(c) The financial and other information concerning Buyer
which has been or will be provided to Seller is true, correct and
complete to the best of Buyer's knowledge after reasonable
investigation.
Section 4.4 SURVIVAL OF BUYER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer contained herein shall survive the
Closing for a period of six (6) months after the Closing; provided, that if
Seller notifies Buyer during such six-month period that any representation or
warranty of Buyer has been breached during such six-month period, then Seller
shall have until the later of (i) a period of three (3) months following the
date of such notification of Buyer by Seller and (ii) the expiration of such
six-month period in which to initiate a lawsuit against Buyer with respect to
such a breach. Any claim which Seller may have at any time against Buyer for
breach of any such representation or warranty, whether known or unknown, which
is not asserted by written notice to Buyer within such six-month period shall
not be valid or effective, and Buyer shall have no liability with respect
thereto.
Section 4.5 BUYER'S COVENANTS AND SELLER'S CONDITION.
(a) Buyer shall promptly notify Seller in writing of any
event or circumstance of which Buyer actually becomes aware that
materially affects the truth of any of Buyer's representations and
warranties herein.
(b) It shall be a condition to Seller's obligation to sell
the Property that as of the date of Closing there shall be no material
breach by Buyer of any of the covenants, undertakings or agreements to
be performed by Buyer prior to or at Closing pursuant to the terms of
this Agreement other than such matters as shall have been cured by
Buyer; and that each representation and warranty made in this Agreement
by Buyer shall be true in all material respects both at the time made
and as of the date of Closing. If any of the foregoing conditions are
not satisfied or waived as of the date of Closing, Seller may, by
written notice given to Buyer at or before the Closing, elect either to
(i) terminate this Agreement or (ii) waive such condition. If Seller
elects to terminate this Agreement as a result of Buyer's default, the
Deposit shall be immediately paid to Seller by the Title Company and
neither party shall have any further rights or obligations hereunder,
except for the indemnification obligations set forth in Sections 2.1 and
6.1, and the rights contained in Section 9.2 below, which shall survive
the Closing and, if the purchase and sale is not consummated, any
termination of this Agreement.
Section 4.6 SELLER'S COVENANTS AND BUYER'S CONDITION.
(a) Seller shall promptly notify Buyer in writing of any
event or circumstance of which Seller actually becomes aware that
materially affects the truth of any of Seller's representations and
warranties herein.
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(b) It shall be a condition to Buyer's obligation to
purchase the Property that as of the date of Closing there shall be no
material breach by Seller of any of the covenants, undertakings or
agreements to be performed by Seller prior to or at Closing pursuant to
the terms of this Agreement other than such matters as shall have been
cured by Seller; and that each representation and warranty made in this
Agreement by Seller, as supplemented pursuant to Section 4.6(a) hereof,
shall be true in all material respects both at the time made and as of
the date of Closing. If any of the foregoing conditions are not
satisfied or waived as of the date of Closing, Buyer may, by written
notice given to Seller at or before the Closing, elect either to (i)
terminate this Agreement or (ii) waive such condition. If Buyer elects
to terminate this Agreement, pursuant to this subparagraph 4.6(b), the
Deposit shall be promptly paid to Buyer by the Title Company and neither
party shall have any further rights or obligations hereunder, except the
indemnification obligations set forth in Sections 2.1 and 6.1, and the
rights contained in Section 9.2 below which shall survive the Closing
and, if the purchase and sale contemplated hereunder is not consummated,
any termination of this Agreement.
Section 4.7 SELLER'S MANAGEMENT AGREEMENT. Seller's existing
Management Agreement relating to the Property and which is with Stream Realty
shall not bind Buyer or the Property subsequent to the Closing.
ARTICLE V
DAMAGE
Section 5.1 MINOR LOSS. In the event of any damage to the Property
or destruction or condemnation of any portion thereof occurring subsequent to
the date hereof and prior to Closing, Seller shall promptly notify Buyer in
writing of such occurrence. Buyer shall be bound to purchase the Property for
the full Purchase Price as required by the terms hereof, without regard to the
occurrence or effect of any such damage to the Property or destruction of any
improvements thereon or condemnation of any portion of the Property occurring
from and after the date of this Agreement, provided that: (a) in Seller's
reasonable judgment, the cost to repair any such damage or destruction, or the
diminution in the value of the remaining Property as a result of a partial
condemnation, does not exceed One Million and No/100 Dollars ($1,000,000.00),
and (b) upon the Closing, there shall be a credit against the Purchase Price due
hereunder equal to the amount of any insurance proceeds or condemnation awards
actually paid to Seller (including, any rent loss insurance proceeds
attributable to periods occurring after the Closing), and an assignment by
Seller to Buyer of any unpaid insurance proceeds paid to Seller, as a result of
any such damage or destruction or condemnation occurring after execution hereof
and before Closing, less any amounts actually expended by Seller in collecting
any such proceeds or awards or in repairing or restoring the Property. Buyer and
Seller agree that Section 5.07 of the Texas Property Code and the Uniform
Vendor-Purchaser Risk of Loss Act shall not apply to this Agreement.
Section 5.2 MAJOR LOSS. In the event the cost to repair, in Seller's
reasonable judgment, of any damage to the Property or destruction or
condemnation of any portion thereof occurring subsequent to the date hereof and
prior to Closing exceeds or equals One Million and No/100 Dollars
($1,000,000.00), then Buyer may, at its sole option to be exercised by the
earlier of the Closing Date or five (5) days after delivery of Seller's written
notice to Buyer of the
9
occurrence of the damage or destruction or the commencement of condemnation
proceedings, elect to terminate this Agreement by providing written notice to
Seller. If Buyer timely elects to terminate this Agreement, then the Deposit
shall be returned to Buyer and neither party shall have any further rights or
obligations hereunder, except for the indemnification obligations contained in
Sections 2.1 and 6.1 of this Agreement and the rights contained in Section 9.2
of this Agreement which shall survive the Closing and, if the purchase and sale
contemplated hereunder is not consummated, any termination of this Agreement. If
Buyer shall not have timely elected to terminate this Agreement pursuant to this
Section 5.2, then, subject to the other terms of this Agreement, the parties
shall consummate the purchase of the Property for the full Purchase Price as
required by the terms hereof and upon the Closing, there shall be a credit
against the Purchase Price due hereunder equal to the amount of any insurance
proceeds or condemnation awards actually paid to Seller, and an assignment by
Seller to Buyer of any unpaid insurance proceeds due to Seller (including, any
rent loss insurance proceeds attributable to periods occurring after the
Closing) as a result of any such damage or destruction or condemnation occurring
after execution hereof and before Closing, less any amounts actually expended by
Seller in collecting any such proceeds or awards or in repairing or restoring
the Property. Buyer and Seller agree that Section 5.07 of the Texas Property
Code and the Uniform Vendor-Purchaser Risk of Loss Act shall not apply to this
Agreement.
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 BROKERS. The parties represent and warrant to each other
that, with the exception of a commission payable by Seller to Xxxxxxx &
Xxxxxxxxx of Texas, Inc. pursuant to separate written agreement (the "Broker"),
such commission being due and payable only in the event the sale of the Property
pursuant to this Agreement actually closes in accordance with the terms hereof
and the Purchase Price is unconditionally paid to Seller, no broker or finder
was instrumental in arranging or bringing about this transaction and that there
are no claims or rights for brokerage commissions or finder's fees in connection
with the transaction contemplated by this Agreement. If any person (other than
the Broker) brings a claim for a commission or finder's fee based upon any
contact, dealings or communication with Buyer or Seller, then the party through
whom such person makes his claim shall defend the other party (the "Indemnified
Party") from such claim, and shall indemnify the Indemnified Party and hold the
Indemnified Party harmless from any and all costs, damages, claims, liabilities
or expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Indemnified Party in defending against the claim.
The provisions of this Section 6.1 shall survive the Closing or, if the purchase
and sale is not consummated, any termination of this Agreement.
Section 6.2 EXPENSES. Except as provided in Section 8.4(b) below or
elsewhere in this Agreement, each party hereto shall pay its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
ARTICLE VII
LEASES AND OTHER AGREEMENTS
Section 7.1 LEASING COSTS. Subject to the terms and provisions
herein and of Section 8.4 below, Seller shall be responsible for all costs which
are payable prior to Closing
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with respect to Leases of space in the Property, and Buyer shall be responsible
for all costs which are payable after Closing with respect to Leases of space in
the Property.
Section 7.2 TENANT NOTICE LETTER. At the Closing, Seller shall
furnish Buyer with a signed notice to be given to each tenant of the Property in
the form attached hereto as EXHIBIT "F" and made a part hereof (the "Tenant
Notice Letter"). The Tenant Notice Letter shall disclose that the Property has
been sold to Buyer and that, after the Closing, all rents should be paid to
Buyer (except to the extent provided otherwise in Section 8.4(a)(i) below).
Section 7.3 BUYER'S CONSENT REQUIRED. During the period from the
date of expiration of the Conditions Period to and including the Closing Date,
Seller shall not, without the prior written consent of Buyer:
(a) Terminate or accept a partial or total surrender or
suffer or permit any termination or partial or total surrender of any
Lease other than in the ordinary course of business, except in the case
of default.
(b) Assign, transfer, make subject to any lien or
encumbrance or hypothecate any Rents or right to Rents or any part
thereof, or any other rights of Seller under the Leases, whether then
due or to accrue in the future.
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 ESCROW INSTRUCTIONS. Seller and Buyer agree to execute
such escrow instructions as may be appropriate to enable the Title Company to
comply with the terms of this Agreement.
Section 8.2 CLOSING. The Closing hereunder shall be held (either by
mail or in person), and delivery of all items to be made at the Closing under
the terms of this Agreement shall be made (either by mail or in person), at the
offices of the Title Company, or such other place mutually agreed to by the
parties, on or before April 4, 2005, or on such other date and time as Buyer and
Seller may mutually agree upon in writing (the "Closing Date").
Section 8.3 DEPOSIT OF DOCUMENTS.
(a) At or before the Closing, Seller shall deposit into
escrow with the Title Company the following items: (i) one (1) duly
executed and acknowledged original of the Deed;
(ii) an affidavit pursuant to Section 1445(b)(2) of
the Code in a form complying with the requirements of the Code,
and on which Buyer is entitled to rely, that Seller is not a
"foreign person" within the meaning of Section 1445(f)(3) of the
Code ("Non-Foreign Affidavit");
(iii) three (3) executed originals of the Assignment;
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(iv) an executed Tenant Notice Letter (in the form of
EXHIBIT "F") for each Tenant of the Property; and
(v) three (3) executed originals of the Xxxx of Sale
(in the form of EXHIBIT "C").
(b) At or before Closing, Buyer shall deposit into escrow
with the Title Company and/or cause the Title Company to issue and
deliver to Seller the following items:
(i) immediately available funds necessary to close
this transaction, subject to any adjustments to be made pursuant
to the terms and provisions of this Agreement;
(ii) three (3) executed originals of the Assignment;
(iii) three (3) executed originals of the Xxxx of
Sale;
(iv) an executed Tenant Notice Letter for each tenant
of the Property; and
(v) three (3) executed originals of an As-Is
Certificate in the form attached hereto as Exhibit "G".
(c) Buyer and Seller shall each deposit such other
instruments as are reasonably required by the Title Company or otherwise
required to close the purchase and sale of the Property in accordance
with the terms hereof, including, without limitation, an agreement (the
"Designation Agreement") designating the Title Company as the "Reporting
Person" for the transaction pursuant to Section 6045(e) of the Code and
the regulations promulgated thereunder, and executed by Seller, Buyer
and the Title Company. The Designation Agreement shall be substantially
in the form attached hereto as EXHIBIT "E" and, in any event, shall
comply with the requirements of Section 6045(e) of the Code and the
regulations promulgated thereunder.
Section 8.4 PRORATIONS.
(a) The following shall all be prorated as of 12:01 a.m. on
the date of Closing, on the basis of a 365-day year: (i) rents, and all
other income from the Property, if any, including, without limitation,
any additional charges, prepaid rent, if any, and any other expenses
payable under the Leases, if any, all as and when actually collected
(whether such collection occurs prior to, on, or after the Closing
Date); (ii) real property taxes and assessments for the year in which
the Closing occurs, (iii) water, sewer and utility charges, (iv) amounts
payable under any service contracts for the month in which the Closing
occurs and prior months, (v) annual permits and/or inspection fees
(calculated on the basis of the period covered), and (vi) any other
expenses relating to the operation and maintenance of the Property. For
three (3) months following the Closing, Buyer shall include all rent
arrearages, if any, on Buyer's monthly invoices or xxxxxxxx to tenants
and promptly deliver to Seller any such rent arrearages that relate to
periods prior to the Closing if and when collected by Buyer; PROVIDED,
HOWEVER, that Rents received by Buyer after the Closing Date shall be
first applied to Rents accruing after the Closing
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Date, and then to Rents accruing prior thereto. Buyer shall be under no
obligation to recover for the benefit of Seller any unpaid Rents owing
by tenants for periods prior to Closing Date. Seller shall have the
right before the Closing, to take such action as Seller deems
appropriate to recover any unpaid Rents for periods prior to the date of
Closing, and after the date of Closing, Seller may pursue any and all
remedies available to Seller in law or equity to recover unpaid Rents
for periods prior to the date of Closing. The amount of any security or
other deposits as actually collected, IF ANY, or similar fees paid by
tenants under the Leases, as to the extent actually collected, shall be
credited against the cash portion of the Purchase Price; accordingly,
Seller shall retain the deposit and/or similar fees paid by tenants
under the Leases, as actually collected, and Buyer shall be responsible
for handling all security deposits of the tenants of the Property in
accordance with the Leases and applicable law. Seller shall retain all
utility deposits, if any. Seller and Buyer hereby agree that if any of
the aforesaid prorations cannot be calculated accurately on the Closing
Date, then the same shall be calculated within thirty (30) days after
the Closing Date, or as soon as sufficient information is available to
permit the parties to accurately calculate such proration(s), and either
party owing the other party a sum of money based on such subsequent
proration(s) shall pay said sum to the other party within ten (10) days
after such calculation is made; PROVIDED, HOWEVER, that the tax
prorations and assessments referenced in Section (ii) herein shall be
final as of the Closing Date. Notwithstanding anything to the contrary
contained herein, to the extent any of the foregoing Property-level
expenses are the responsibility of Tenant pursuant to the terms of the
CitiCorp Lease, then such expense items shall NOT be prorated ---
between Seller and Buyer at Closing.
(b) Seller shall pay the premium for the Title Policy
without extended coverage or endorsement and without any additional
premium to delete the so-called "survey exception," if any. Buyer shall
pay the premiums for any endorsements to the Title Policy which Buyer
requests. Escrow fees shall be split evenly between Buyer and Seller
each paying half. Recording charges, transfer taxes and any other
expenses of the escrow for the sale shall be paid by Buyer. All costs
and charges described in this paragraph shall be paid at Closing. Any
bills received after the Closing and not previously prorated in escrow
shall be divided as provided herein, and shall be paid promptly upon
receipt of a xxxx therefor. Seller shall pay for the costs of the
Survey. Buyer shall pay any and all taxes related to any change in use
of the Property.
ARTICLE IX
PROVISIONS WITH RESPECT TO DEFAULT
Section 9.1 DEFAULT BY SELLER. In the event Seller fails to
consummate the transactions contemplated herein for any reason (except in the
event of a breach or violation by Buyer of any representation or warranty of
Buyer set forth herein, a failure by Buyer to perform its obligations hereunder
or to consummate the transactions contemplated herein or the termination hereof
pursuant to a right granted to Buyer or Seller hereunder to do so) or if Seller
has breached a representation or warranty that prevents the consummation of the
purchase and sale, Buyer may terminate this Agreement by notifying Seller
thereof in writing, and thereupon shall be entitled to a return of the Deposit
(and all interest accrued thereon) and liquidated damages from the Seller of One
Million Dollars ($1,000,000.00) (the "Liquidated Damages"), as its sole and
exclusive remedy and relief hereunder. Seller and Buyer agree that Buyer's
damages resulting from
13
Seller's default are difficult, if not impossible, to determine and that the
Liquidated Damages are a fair estimate of those damages which have been agreed
to in an effort to cause the amount of those damages to be certain. Seller shall
not be liable to Buyer for any actual, punitive, speculative, consequential or
other damages (other than the Liquidated Damages).
Section 9.2 DEFAULT BY BUYER. IF THE SALE AND PURCHASE OF THE
PROPERTY CONTEMPLATED BY THIS AGREEMENT IS NOT CONSUMMATED BECAUSE OF BUYER'S
DEFAULT, SELLER SHALL TERMINATE THIS AGREEMENT BY NOTIFYING BUYER THEREOF, AND
THEREUPON SHALL BE ENTITLED TO THE DEPOSIT. IT IS HEREBY AGREED THAT SELLER'S
DAMAGES IN THE EVENT OF A DEFAULT BY BUYER HEREUNDER ARE UNCERTAIN AND EXTREMELY
DIFFICULT TO ASCERTAIN, AND THAT THE DEPOSIT CONSTITUTES A REASONABLE
PRE-ESTIMATE OF SUCH DAMAGES AND SELLER'S RETENTION THEREOF IS INTENDED NOT AS A
PENALTY, BUT AS FULL LIQUIDATED DAMAGES. THE RIGHT TO RETAIN THE DEPOSIT AS FULL
LIQUIDATED DAMAGES IS SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF DEFAULT
HEREUNDER BY BUYER, EXCEPT, HOWEVER, FOR THE INDEMNIFICATION OBLIGATIONS OF
BUYER UNDER THIS AGREEMENT, FOR THE BREACH OF WHICH SELLER MAY EXERCISE ANY AND
ALL RIGHTS OR REMEDIES AVAILABLE AT LAW OR IN EQUITY.
_____________________ ______________________
Seller's initials Buyer's initials
ARTICLE X
MISCELLANEOUS
Section 10.1 NOTICES. Any notices required or permitted to be given
hereunder shall be given in writing and shall be delivered either (a) in person,
including, without limitation, delivery by a courier that provides a receipt,
(b) by certified mail, postage prepaid, return receipt requested, (c) by a
commercial overnight courier that guarantees next day delivery and provides a
receipt, or (d) by telefacsimile, provided such notice is also given in one of
the methods described in clauses (a)-(c) above, and such notices shall be
addressed as follows:
To Seller: Xxxxxx Office Buildings I, LLC
c/o BSB Capital
0000 Xxxxxx Xxxxx, 0 Xxxx
Xxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
with a copy to: Jenkens & Xxxxxxxxx, A Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
14
To Buyer: Harvard Property Trust, LLC
d/b/a Behringer Harvard Funds
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon delivery and
in the case of a telefacsimile notice only upon the receipt of confirmation of
the successful transmission of such notice.
Section 10.2 ENTIRE AGREEMENT. This Agreement, together with the
Exhibits hereto, contains all representations, warranties and covenants made by
Buyer and Seller and constitutes the entire understanding between the parties
hereto with respect to the subject matter hereof. Any prior correspondence,
memoranda, letters of intent or agreements are replaced in total by this
Agreement together with the Exhibits hereto.
Section 10.3 TIME. Time is of the essence in the performance of each
of the parties respective obligations contained herein. In the event that a date
for performance of any obligation under this Agreement or expiration of any time
period falls on a Saturday, Sunday or a holiday on which national banks are
required to be closed, the date for performance of such obligation or expiration
of such time period shall be adjusted to be the next occurring calendar day
which is not a Saturday, Sunday or bank holiday.
Section 10.4 ATTORNEYS' FEES. If either party hereto fails to perform
any of its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, then the party prevailing in any litigation relating to such dispute,
which is not appealed or appealable, shall be entitled to recover, and the non-
prevailing party will pay, in such dispute, as the case may be, any and all
reasonable costs and expenses incurred by the other party on account of such
default and/or in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Agreement and to survive and not be merged into any
such judgment.
Section 10.5 NO MERGER. The obligations contained herein shall not
merge with the transfer of title to the Property but shall remain in effect
until fulfilled in accordance with the terms hereof.
15
Section 10.6 ASSIGNMENT. Buyer's rights and obligations hereunder
shall not be assignable without the prior written consent of Seller. Any
assignment without the prior written consent of Seller shall be void.
Notwithstanding the foregoing, Buyer shall have the right to assign this
Agreement to an Affiliate (as herein defined) without first obtaining Seller's
prior written consent; provided, however, that any such assignment shall not
release Buyer from its indemnification obligations set forth herein. As used
herein, the term "Affiliate" shall mean: (1) an entity that controls, is
controlled by, or is under common control with Buyer; (2) any partnership in
which Buyer or Buyer's controlling member is the general partner; (3) any fund
or entity sponsored by Buyer; or (4) any entity that retains Buyer or any entity
affiliated with Buyer to manage the Property
Section 10.7 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
Section 10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
Section 10.9 INTERPRETATION OF AGREEMENT. The article, section and
other headings of this Agreement are for convenience of reference only and shall
not be construed to affect the meaning of any provision contained herein. Where
the context so requires, the use of the singular shall include the plural and
vice versa and the use of the masculine shall include the feminine and the
neuter. The term "Person" shall include any individual, partnership, joint
venture, corporation, trust, unincorporated association, any other entity and
any government or any department or agency thereof, whether acting in an
individual, fiduciary or other capacity.
Section 10.10 AMENDMENTS. This Agreement may be amended or modified
only by a written instrument signed by Buyer and Seller.
Section 10.11 DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING
CONTRACT. The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an offer
to enter into a legally binding contract with respect to the purchase and sale
of the Property. The parties shall be legally bound with respect to the purchase
and sale of the Property pursuant to the terms of this Agreement only if and
when both Seller and Buyer have fully executed and delivered to each other a
counterpart of this Agreement, including, without limitation, all Exhibits
hereto.
Section 10.12 NO PARTNERSHIP. The relationship of the parties hereto
is solely that of seller and buyer with respect to the Property and no joint
venture or other partnership exists between the parties hereto. Neither party
has any fiduciary relationship hereunder to the other.
Section 10.13 NO THIRD PARTY BENEFICIARY. The provisions of this
Agreement are not intended to benefit any third parties.
Section 10.14 EXHIBITS. The exhibits specified in the Table of
Contents are attached to this Agreement and by this reference made a part hereof
and are subject to revision prior to Closing.
16
Section 10.15 CONFIDENTIALITY. The parties hereto covenant and agree
that they shall not communicate the terms or any other aspects of this
transaction (including any of the due diligence materials delivered to Buyer by
Seller or Seller's agents) prior to the Closing with any person or entity other
than the Title Company and the other party and their respective agents,
consultants, attorneys, financial advisors, accountants, and employees, and
shall treat the terms of this Agreement in a confidential manner. However,
notwithstanding the foregoing provisions or any other provision in this
Agreement, (a) the foregoing covenant of confidentiality shall not be applicable
to any information published by Seller as public knowledge or otherwise
available in the public domain; and (b) Buyer shall be permitted to disclose
such information as may be recommended by Buyer's legal counsel in order to
comply with all financial reporting, securities laws and other legal
requirements applicable to Buyer, including any required disclosures to the
Securities and Exchange Commission, so long as such disclosure does not cause a
default under the CitiCorp Lease.
Section 10.16 SEVERABILITY. If any provision of this Agreement, the
deletion of which would not materially adversely affect the material benefits
receivable by any party hereunder or substantially increase the burden of any
party hereto, shall be held to be, invalid or unenforceable to any extent, the
same shall not affect in any respect whatsoever the validity or enforceability
of the remainder of this Agreement.
Section 10.17 DTPA WAIVER; WAIVER OF CONSUMER RIGHTS. BUYER HEREBY
REPRESENTS AND WARRANTS TO SELLER THAT (A) BUYER IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION, (B) BUYER IS REPRESENTED BY LEGAL COUNSEL, (C)
BUYER IS SEEKING TO ACQUIRE THE PROPERTY, WHICH WILL NOT BE USED AS A FAMILY
RESIDENCE, FOR A CONSIDERATION THAT EXCEEDS $500,000, AND (D) BUYER IS A
SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF THIS
TRANSACTION AND/OR HAS ASSETS OF $25 MILLION OR MORE OR IS OWNED OR CONTROLLED
BY AN ENTITY WITH ASSETS OF $25 MILLION OR MORE. BUYER HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER THE
TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT (SECTIONS 17.41 AND
FOLLOWING OF THE TEXAS BUSINESS AND COMMERCE CODE) (THE "DTPA"), A LAW THAT
GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS AND ANY OTHER SIMILAR CONSUMER
PROTECTION LAW, WHETHER FEDERAL, STATE OR LOCAL. AFTER CONSULTATION WITH AN
ATTORNEY OF BUYER'S OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER.
BUYER COVENANTS NOT TO XXX SELLER UNDER THE DTPA OR ANY SUCH SIMILAR CONSUMER
PROTECTION LAW. IN ANY EVENT, BUYER AND SELLER ACKNOWLEDGE THAT THIS TRANSACTION
IS EXEMPTED FROM THE DTPA AS PROVIDED IN SECTIONS 17.49(f) AND (g) OF THE DTPA.
Section 10.18 ABSTRACT OF LAND. Buyer acknowledges that at the time of
the execution of this Agreement, Broker advised Buyer in writing that Buyer
should have the abstract covering the Property examined by an attorney selected
by Buyer or that Buyer should be furnished with or obtain a policy of title
insurance.
17
Section 10.19 AUDIT RIGHTS. Buyer has advised Seller that Buyer
desires to prepare up to three (3) years of audited financial statements in
respect of the Property in compliance with the policies of Buyer and certain
laws and regulations, including, without limitation, Securities and Exchange
Commission Regulation S-X, Rule 3-14. Seller agrees to use reasonable efforts to
cooperate with Buyer's auditors in the preparation of such audited financial
statements (it being understood and agreed that the foregoing covenant shall
survive the Closing). Without limiting the generality of the preceding sentence
(i) Seller shall, during normal business hours, allow Buyer's auditors
reasonable access to such books and records (excluding the Confidential
Information) maintained by Seller (and Seller's manager of the Property) in
respect of the Property as necessary to prepare such audited financial
statements; (ii) Seller shall use reasonable efforts to provide to Buyer such
financial information and supporting documentation as are necessary for Buyer's
auditors to prepare audited financial statements; (iii) Seller will make
available for interview by Buyer and Buyer's auditors the manager of the
Property or other agents or representatives of Seller responsible for the
day-to-day operation of the Property and the keeping of the books and records in
respect of the operation of the Property; and (iv) if Seller has audited
financial statements with respect to the Property, Seller shall promptly provide
Buyer's auditors with a copy of such audited financial statements. If after the
Closing Date Seller obtains an audited financial statement in respect of the
Property for a fiscal period prior to the Closing Date that was not completed as
of the Closing Date, then Seller shall promptly provide Buyer with a copy of
such audited financial statement, and the foregoing covenant shall survive
Closing. Notwithstanding the foregoing, Buyer acknowledges that (a) Seller
acquired the Property on September 12, 2003 and (b) pursuant to the CitiGroup
Lease most property-level functions are performed and paid for by Tenant, and
accordingly Seller has limited property-level records which might assist Buyer
in preparing the audited financial statements that Buyer requires.
Section 10.20 TENANT ESTOPPEL CERTIFICATE. Following the execution of
this Agreement, Seller covenants to use commercially reasonable efforts to
obtain an estoppel from the sole tenant at the Property, CitiCorp North America,
Inc., such estoppel to be in the form of Exhibit "H" attached hereto. In the
event that Seller is unable to obtain such estoppel certificate then Buyer may
elect not to close the subject purchase transaction and may elect to terminate
this Agreement provided Buyer gives written notice of termination to Seller on
or prior to the earlier of (i) two (2) business days following the date Seller
notifies Buyer Seller will not be able to obtain an estoppel certificate in the
form attached hereto as EXHIBIT "H" or (ii) the date of the Closing. Buyer
acknowledges, however, that Seller's failure to obtain such estoppel certificate
18
shall not constitute an event of default by Seller hereunder and, even if Buyer
shall terminate this Agreement as provided above in this Section, Seller shall
be entitled to retain the Deposit (and all interest earned thereon) in the event
that Buyer elects to terminate this Agreement and not to close the subject
purchase hereunder as a result of Seller's inability to obtain such tenant
estoppel. Buyer further acknowledges that the form of Tenant estoppel attached
hereto, at Buyer's request, is broader in scope than the estoppel obligation set
forth in the CitiGroup Lease.
The parties hereto have executed this Agreement as of the date first
written above.
SELLER:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
D. Xxxxxx Xxxx
Sole Manager
BUYER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
19
JOINDER OF THE TITLE COMPANY
The Title Company joins in the execution of this Agreement for the sole
purpose of acknowledging the Title Company's receipt of an executed copy of this
Agreement.
REPUBLIC TITLE OF TEXAS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
20
JOINDER OF THE BROKER
The Broker(s) join in the execution of this Agreement for the sole
purpose of evidencing its agreement with the provisions of Section 6.1 hereto.
XXXXXXX & WAKEFIELD OF TEXAS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
21
EXHIBIT "A" TO PURCHASE AND SALE AGREEMENT
THE LAND
[TO BE INSERTED]
1
EXHIBIT "B" TO PURCHASE AND SALE AGREEMENT
SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER
STATE OF TEXAS SS.
SS. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS SS.
THAT XXXXXX OFFICE BUILDINGS I, LLC, a Delaware limited liability
company ("Grantor"), for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration to it paid by HARVARD
PROPERTY TRUST, LLC, a Delaware limited liability company d/b/a Behringer
Harvard Funds ("Grantee"), the receipt and sufficiency of which are hereby
acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY unto
Grantee:
(a) that certain tract or parcel of land situated in the
City of Irving, County of Dallas, State of Texas, as more particularly
described in EXHIBIT "A" attached hereto and made a part hereof for all
purposes (the "Land");
(b) all right, title and interest of Seller, if any, in and
to all privileges and easements appurtenant to Seller's interest in the
Land, including, without limitation, all of Seller's right, title and
interest, if any, in and to (i) all minerals, if any, oil, gas and other
hydrocarbon substances on and under the Land, if any, (ii) any and all
development rights, air rights, sewer rights and permits, water, water
rights, riparian rights and water stock relating to the Land, if any,
and (iii) any easements, licenses, covenants and other rights-of-way or
other appurtenances used in connection with the beneficial use and
enjoyment of the Land and all of Seller's right, title and interest, if
any, in and to all roads and alleys adjoining or servicing the Land
(collectively, the "Appurtenances");
(c) all right, title and interest of Seller, if any, in and
to all improvements and fixtures located on the Land, if any, as well as
all buildings and structures presently located on the Land, if any,
including, without limitation, all apparatus, equipment and appliances
used in connection with the operation or occupancy of the Land or any of
the foregoing improvements, such as heating and air conditioning systems
and facilities used to provide any utility, refrigeration, ventilation,
garbage disposal or other services (collectively, the "Improvements").
(the Land, all right, title and interest of Grantor in and to the Improvements
and such rights and Appurtenances being hereinafter referred to collectively as
the "Property").
This conveyance is made and accepted subject, subordinate and inferior
to all leases affecting any of the Property and all easements, covenants and the
other matters and exceptions set forth on EXHIBIT "B", attached hereto and made
a part hereof for all purposes (the "Permitted Exceptions").
1
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
unto Grantee, its successors and assigns, forever, and Grantor does hereby bind
itself, its successors and assigns, to WARRANT and FOREVER DEFEND all and
singular the Property, subject to the Permitted Exceptions, unto Grantee, its
successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof by, through or under Grantor, but not
otherwise.
The Property is sold and conveyed by Grantor and accepted by Grantee AS
IS, WHERE IS AND WITH ALL FAULTS, and the provisions of Section 4.1 of that
certain Agreement of Purchase and Sale dated , by and between Grantor and
Grantee, pursuant to which this conveyance is being effected, are incorporated
herein by this reference and made a part hereof.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
effective as of the ____ day of April, 2005.
GRANTOR:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
D. Xxxxxx Xxxx
Sole Manager
THE STATE OF TEXAS ss.
ss.
COUNTY OF COLLIN ss.
On this ____ day of _________, 2005, before me personally appeared D.
Xxxxxx Xxxx, to me personally known, who, being by me duly sworn, did say that
he is the Sole Manager of XXXXXX OFFICE BUILDINGS I, LLC, a Delaware limited
liability company, and that the seal affixed to the foregoing instrument is the
corporate seal of said bank and that said instrument was signed and sealed on
behalf of said bank by authority of its Board of Directors, and acknowledged
said instrument to be the free act and deed of said bank.
IN WITNESS WHEREOF, I hereunto set my hand and affixed my official seal
at my office in __________________________ the day and year last above written.
(SEAL)
________________________________________
Printed Name:___________________________
Notary Public in and for said State
Commissioned in __________ County
2
EXHIBIT "A"
THE LAND
[TO BE INSERTED]
3
EXHIBIT "B"
THE PERMITTED EXCEPTIONS
[TO BE INSERTED PRIOR TO CLOSING]
4
EXHIBIT "C" TO PURCHASE AND SALE AGREEMENT
XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale") is made and entered into as of
the ______ day of April, 2005, by and between XXXXXX OFFICE BUILDINGS I, LLC, a
Delaware limited liability company ("Assignor") and HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company d/b/a Behringer Harvard Funds ("Assignee").
W I T N E S S E T H:
A. Concurrently with the execution and delivery hereof, Assignor is
conveying unto Assignee by Special Warranty Deed, executed and delivered by
Assignor, as grantor, unto Assignee, as grantee, dated of even date herewith:
(a) all of Assignor's right, title and interest in and to
that certain tract or parcel of land situated in the City of Irving,
County of Dallas, State of Texas, as more particularly described in
EXHIBIT "A" attached hereto and made a part hereof for all purposes (the
"Land");
(b) all right, title and interest of Assignor, if any, in
and to all privileges and easements appurtenant to Assignor's interest
in the Land, including, without limitation, all of Seller's right, title
and interest, if any, in and to (i) any and all development rights, air
rights, sewer rights and permits, water, water rights, riparian rights
and water stock relating to the Land, if any, and (ii) any easements,
licenses, covenants and other rights-of-way or other appurtenances used
in connection with the beneficial use and enjoyment of the Land and all
of Assignor's right, title and interest, if any, in and to all roads and
alleys adjoining or servicing the Land; and
(c) all right, title and interest of Assignor, if any in and
to all improvements and fixtures located on the Land, if any, as well as
all buildings and structures presently located on the Land, if any,
including, without limitation, all apparatus, equipment and appliances
used in connection with the operation or occupancy of the Land or any of
the foregoing improvements, such as heating and air conditioning systems
and facilities used to provide any utility, refrigeration, ventilation,
garbage disposal or other services, but specifically excluding certain
fixtures, apparatus, equipment and appliances owned by any tenant under
any lease (collectively, the "Improvements").
B. Assignee desires to purchase from Assignor, and Assignor desires
to assign and transfer unto Assignee all of Assignor's right, title and
interest, if any, in all furniture, furnishings, fixtures, appliances,
equipment, machinery, names and other items of tangible and intangible personal
property, if any, situated upon or used exclusively in connection with the Land
and the Improvements (such right, title and interest of Assignor, if any, is
herein referred to as the "Property").
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged and confessed by Assignor, Assignor does hereby ASSIGN, TRANSFER,
SET OVER and DELIVER unto
1
Assignee, its successors and assigns, all of the right, title and interest of
Assignor, if any, in the Property.
This Xxxx of Sale is made subject, subordinate and inferior to the
leases relating to the Property, Land and Improvements, and all easements,
covenants and other matters and exceptions set forth on EXHIBIT "B", attached
hereto and made a part hereof for all purposes (the "Permitted Exceptions").
The Property is sold and conveyed by Assignor and accepted by Assignee
AS IS, WHERE IS AND WITH ALL FAULTS, and without representation or warranty of
any kind.
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
unto Assignee, its successors and assigns, forever. All of the covenants, terms
and conditions set forth herein shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Xxxx of Sale
to be executed as of the day and year first above written.
ASSIGNOR:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
D. Xxxxxx Xxxx
Sole Manager
ASSIGNEE:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
2
EXHIBIT "A"
THE LAND
[TO BE INSERTED]
3
EXHIBIT "B"
THE PERMITTED EXCEPTIONS
[TO BE INSERTED PRIOR TO CLOSING]
4
EXHIBIT "D" TO PURCHASE AND SALE AGREEMENT
ASSIGNMENT OF LEASES, SERVICE CONTRACTS AND WARRANTIES
STATE OF TEXAS SS.
SS. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS SS.
THAT THIS ASSIGNMENT OF LEASES, SERVICE CONTRACTS AND WARRANTIES (this
"Assignment") is made and entered into effective as of the ____ day of April,
2005, by and between XXXXXX OFFICE BUILDINGS I, LLC, a Delaware limited
liability company ("Assignor") whose address is c/o BSB Capital, 0000 Xxxxxx
Xxxxx, 0 Xxxx, Xxxxx, Xxxxx 00000, Attn: Xxxxx Xxxxxxxx, and HARVARD PROPERTY
TRUST, LLC, a Delaware limited liability company d/b/a Behringer Harvard Funds
("Assignee") whose address is 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000, Attn: Xxx Xxxxxx.
W I T N E S S E T H:
A. Concurrently with the execution and delivery hereof, Assignor is
conveying unto Assignee by Special Warranty Deed, executed and delivered by
Assignor, as grantor, unto Assignee, as grantee, dated of even date herewith,
(a) all of Assignor's right, title and interest in and to
that certain tract or parcel of land situated in the City of Irving,
County of Dallas, State of Texas, as more particularly described in
EXHIBIT "A" attached hereto and made a part hereof for all purposes (the
"Land");
(b) all right, title and interest of Assignor, if any, in
and to all privileges and easements appurtenant to Assignor's interest
in the Land, if any, including, without limitation, all of Seller's
right, title and interest, if any, in and to (i) any and all development
rights, air rights, sewer rights and permits, water, water rights,
riparian rights and water stock relating to the Land, if any, and (ii)
any easements, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use and enjoyment
of the Land and all of Assignor's right, title and interest, if any, in
and to all roads and alleys adjoining or servicing the Land; and
(c) all right, title and interest of Assignor, if any, in
and to all improvements and fixtures located on the Land, if any, as
well as all buildings and structures presently located on the Land, if
any, including, without limitation, all apparatus, equipment and
appliances used in connection with the operation or occupancy of the
Land or any of the foregoing improvements, such as heating and air
conditioning systems and facilities used to provide any utility,
refrigeration, ventilation, garbage disposal or other services, if any
(collectively, the "Improvements").
B. Assignee desires to purchase from Assignor, and Assignor desires
to assign and transfer unto Assignee, all right, title and interest of Assignor,
if any in (i) those certain leases (the "Leases"), if any, listed on EXHIBIT
"B", attached hereto and made a part hereof for all purposes, (ii) those certain
service contracts (the "Contracts"), if any, relating to the Land and the
Improvements and listed on EXHIBIT "C", attached hereto and made a part hereof
for all purposes,
1
and (iii) those certain warranties held by Assignor (the "Warranties"), if any,
relating to the Improvements listed on EXHIBIT "D", attached hereto and made a
part hereof for all purposes.
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged and confessed by Assignor, Assignor does hereby ASSIGN, TRANSFER,
SET OVER and DELIVER unto Assignee all of the right, title and interest of
Assignor, if any, in the Leases, the Contracts and the Warranties.
This Assignment is made subject, subordinate and inferior to the
easements, covenants and other matters and exceptions set forth on EXHIBIT "E",
attached hereto and made a part hereof for all purposes.
Assignee hereby agrees to assume and be obligated to perform each of the
covenants, duties and obligations which arise and accrue under the Leases and
the Contracts from and after the date of this Assignment, including, without
limitation, all obligations relating to security deposits made pursuant to the
Leases. Assignee hereby agrees to indemnify and hold Assignor harmless from and
against any and all claims, actions and causes of action arising out of or
relating to the Leases and the Contracts from and after the date hereof.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to
be executed effective as of the day and year first above written.
ASSIGNOR:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
D. Xxxxxx Xxxx
Sole Manager
Witness:___________________________
ASSIGNEE:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Witness:_____________________________
0
XXX XXXXX XX XXXXX ss.
ss.
COUNTY OF COLLIN ss.
On this ____ day of _________, 2005, before me personally appeared D.
Xxxxxx Xxxx, to me personally known, who, being by me duly sworn, did say that
he is the Sole Manager of XXXXXX OFFICE BUILDINGS I, LLC, a Delaware limited
liability company, and that the seal affixed to the foregoing instrument is the
corporate seal of said bank and that said instrument was signed and sealed on
behalf of said bank by authority of its Board of Directors, and acknowledged
said instrument to be the free act and deed of said bank.
IN WITNESS WHEREOF, I hereunto set my hand and affixed my official seal
at my office in __________________________ the day and year last above written.
(SEAL) ________________________________________
Printed Name:___________________________
Notary Public in and for said State
Commissioned in ____________ County
4
EXHIBIT "A"
THE LAND
[TO BE INSERTED]
5
EXHIBIT "B"
THE LEASES
[TO BE INSERTED PRIOR TO CLOSING]
6
EXHIBIT "C"
THE CONTRACTS
[TO BE INSERTED PRIOR TO CLOSING]
7
EXHIBIT "D"
THE WARRANTIES
[TO BE INSERTED PRIOR TO CLOSING]
8
EXHIBIT "E"
THE PERMITTED EXCEPTIONS
[TO BE INSERTED PRIOR TO CLOSING]
9
EXHIBIT "E" TO PURCHASE AND SALE AGREEMENT
DESIGNATION AGREEMENT
THIS DESIGNATION AGREEMENT (the "Agreement") is entered into by and
among XXXXXX OFFICE BUILDINGS I, LLC, a Delaware limited liability company
("Seller"), HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company
d/b/a Behringer Harvard Funds ("Buyer"), and Republic Title of Texas, inc.
("Title Company").
I. RECITALS
A. Pursuant to that certain Agreement of Purchase and Sale, entered
into by and between Seller and Buyer, dated as of March __, 2005 (the "Purchase
Agreement"), Seller has agreed to sell to Buyer, and Buyer has agreed to buy
from Seller, that certain real property (the "Property") described in the
Purchase Agreement. (The purchase and sale of the Property pursuant to the
Purchase Agreement is sometimes referred to below as the "Transaction").
B. Section 6045(e) of the United States Internal Revenue Code and
the regulations promulgated thereunder (collectively, the "Reporting
Requirements") require an information return to be made to the United States
Internal Revenue Service, if necessary, and a statement to be furnished to
Seller, in connection with the Transaction.
C. Pursuant to the Purchase Agreement, an escrow has been opened
with Title Company through which the Transaction will be or is being closed.
Title Company is either (i) the person responsible for closing the Transaction
(as described in the Reporting Requirements) or (ii) the disbursing title or
escrow company that is most significant in terms of gross proceeds disbursed in
connection with the Transaction (as described in the Reporting Requirements).
II. AGREEMENT
NOW, THEREFORE, Seller, Buyer and Title Company agree as follows:
1. Title Company acknowledges that it is the Reporting Person (as
defined in the Reporting Requirements) for the Transaction and that it shall
perform all duties required by the Reporting Requirements to be performed by the
Reporting Person for the Transaction.
2. Buyer and Seller shall provide, promptly, any and all
documentation and information that may be required or requested by Title Company
in performing its duties above described.
3. The names and addresses of the parties hereto are as follows:
SELLER: Xxxxxx Office Buildings I, LLC
c/o BSB Capital
0000 Xxxxxx Xxxxx, 0 Xxxx
Xxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx
1
Buyer: Harvard Property Trust, LLC
d/b/a Behringer Harvard Funds
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
TITLE COMPANY: Republic Title of Texas, Inc.
----------------------
----------------------
----------------------
4. Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during which the date of
closing of the Transaction occurs.
5. This Agreement may be executed in two or more counterparts, each
when taken separately shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
_________________, 2005.
SELLER:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
D. Xxxxxx Xxxx
Sole Manager
BUYER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TITLE COMPANY:
repuBLIC TITLE OF TEXAS, INC.,
a ____________________________________
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
3
EXHIBIT "F" TO PURCHASE AND SALE AGREEMENT
TENANT NOTICE LETTER
-------------------, ------
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Attn:
Attn:
[NAME OF TENANT]
[ADDRESS OF TENANT]
Re: Notice of Change of Ownership of the ___________________________
located in the City of Irving, Dallas County, Texas (the
"Property")
Ladies and Gentlemen:
You are hereby notified that:
(1) As of the date hereof, ______________, a _________ (the "Former
Owner"), has sold, conveyed and assigned all of the Former
Owner's interest in and to the Property and your lease to
__________, a ___________ (the "New Owner"). The New Owner will
be responsible for all of the obligations of the "landlord" or
"lessor" under your lease from and after the date hereof.
(2) The New Owner has received and is, as of the date hereof,
responsible for your security deposit in the amount of
$_____________ with respect to your leased premises on the
Property.
(3) Further rental payments with respect to your leased premises on
the Property should be made to the New Owner by delivering a
check or money order payable to the order of ____________ at the
following address:
---------------------------------------------------------------.
1
Very truly yours,
FORMER OWNER:
XXXXXX OFFICE BUILDINGS I, LLC,
a Delaware limited liability company
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NEW OWNER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
2
EXHIBIT "G" TO PURCHASE AND SALE AGREEMENT
AS-IS CERTIFICATE
[TO BE BASED UPON TEXT OF SECTION 4.1 OF THE AGREEMENT]
1
EXHIBIT "H" TO PURCHASE AND SALE AGREEMENT
ESTOPPEL CERTIFICATE
[Address of Buyer]
[Address of Lender]
RE: [Name and Address of Property]
Gentlemen:
Reference is made to that certain [LEASE AGREEMENT] dated as of
____________ __, ____ between ____________________________, a ____________, as
landlord ("LANDLORD"), and the undersigned, as tenant ("TENANT"), demising
premises at the captioned address more particularly described in the Lease (the
"PREMISES"). The lease, together with all amendments thereto included in
SCHEDULE 1 attached hereto, is herein referred to as the "LEASE". Tenant hereby
represents to the Benefited Parties (as herein defined) that the following
statements are true and correct as of the date hereof:
1. A true, correct and complete copy of the Lease (including all
amendments) is attached hereto as SCHEDULE 1. The undersigned is the Tenant
under the Lease for space at the Premises covering ___________ rentable square
feet.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as indicated in Schedule 1. There
are no understandings, contracts, agreement or commitments of any kind
whatsoever with respect to the Premises, except as expressly provided in the
Lease.
3. The term of the Lease commenced on ________________, and expires
on _________________, subject to any rights of Tenant to extend the term as
provided therein. The base rent presently being charged is $__________. All
rentals, charges, additional rent and other obligations on the part of the
undersigned have been paid to and including ____________, 200_. No rental, other
than for the current month, has been paid in advance. The undersigned has
accepted possession and now occupies the Premises and is currently open for
business. In addition to the fixed minimum Base Rent, the Tenant pays its
pro-rata share of real estate taxes and operating expenses in excess of a base
stop of _________________.
4. Tenant has paid to Landlord a security deposit in the amount of
$________. Tenant has no claim against Landlord for any other security, rental,
cleaning access card, key or other deposits or any prepaid rentals.
5. Landlord is not in any respect in default in the performance of
the terms and provisions of the Lease, nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. All conditions under the Lease to be performed by
Landlord have been satisfied. Without limiting the generality of the
2
foregoing, all improvements to be constructed in the Premises by Landlord have
been completed to the satisfaction of Tenant and accepted by Tenant and any
tenant construction allowances have been paid in full, and all duties of an
inducement nature required of Landlord in the Lease have been fulfilled to
Tenant's satisfaction. Tenant has no claim against Landlord by reason of any
restriction, encumbrance or defect in title of the Premises of which Tenant has
actual knowledge.
6. There currently is no defense, offset, lien, claim or
counterclaim by or in favor of Tenant against Landlord under the Lease or
against the obligations of Tenant under the Lease (including, without
limitation, any rentals or other charges due or to become due under the Lease)
and Tenant is not contesting any such obligations, rentals or charges. To
Tenant's knowledge, all leasing commissions due in respect of the current term
of the Lease have been paid.
7. Tenant has no renewal, extension or expansion option, no right
of first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the property demised thereunder except as
may be expressly set forth in the Lease. Tenant has no right to lease or occupy
any parking spaces within the Property except as set forth in the Lease. Tenant
is entitled to no free rent nor any credit, offsets or deductions in rent, nor
other leasing concessions other than those specified in the Lease.
8. Tenant is not in any respect in default in the performance of
the terms and provisions of the Lease nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. Without limiting the generality of the foregoing,
Tenant is current in its rental obligation under the Lease.
9. The undersigned has not received notice of a prior transfer,
assignment, hypothecation or pledge by Landlord of any of Landlord's interest in
the Lease other than to the holder of any first mortgage on the captioned
property.
10. There are no liens recorded against the Premises with respect to
work performed by or on behalf of Tenant or materials supplied to the demised
property.
11. Tenant has not assigned the Lease nor sublet all or any part of
the Premises, except as shown on Schedule 1 attached hereto and made a part
hereof for all purposes.
3
THE ABOVE CERTIFICATIONS ARE MADE TO THE BENEFITED PARTIES KNOWING THAT
THE BENEFITED PARTIES WILL RELY THEREON IN MAKING AN INVESTMENT IN THE PREMISES.
FOR PURPOSES HEREOF, THE TERM "BENEFITED PARTIES" MEANS THE ADDRESSEES OF THIS
LETTER AND ALL OF THE FOLLOWING: (A) HARVARD PROPERTY TRUST, LLC, A DELAWARE
LIMITED LIABILITY COMPANY D/B/A BEHRINGER HARVARD FUNDS AND ITS SUCCESSORS,
ASSIGNS, AND DESIGNEES (INCLUDING, WITHOUT LIMITATION, ANY TENANT IN COMMON
PURCHASERS); AND (B) ANY LENDER TO WHICH ANY PARTY DESCRIBED IN THE FOREGOING
CLAUSE (A) GRANTS A DEED OF TRUST, MORTGAGE OR OTHER LIEN UPON THE PREMISES.
Very truly yours,
__________________________________,
a _________________________________
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
4